Citation Nr: 0419082
Decision Date: 07/16/04 Archive Date: 07/27/04
DOCKET NO. 01-02 108 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
degenerative disc disease of the cervical spine.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
degenerative disc disease of the lumbar spine.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right knee disability.
4. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
left knee disability.
5. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
bilateral hearing loss.
6. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
right shoulder disability.
7. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for an
ankle disability.
8. Entitlement to special monthly pension based on the need
of aid and attendance of another person or at the housebound
rate.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Counsel
INTRODUCTION
The veteran served on active duty from December 1964 to
October 1967.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a March 2000 rating decision of the St.
Petersburg, Florida, department of Veterans Affairs (VA)
Regional Office (RO).
The issue of entitlement to special monthly pension based on
the need of aid and attendance of another person or at the
housebound rate is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All notification and assistance necessary for a proper
adjudication of the veteran's claims for service connection
has been accomplished by the RO.
2. Service connection for degenerative disc disease of the
cervical spine, degenerative disc disease of the lumbar
spine, a right knee disability, a left knee disability,
bilateral hearing loss, a right shoulder disability and an
ankle disability was most recently denied by the RO in a
rating decision dated in October 1998.
3. Evidence submitted since the October 1998 rating decision
is not so significant that it must be considered in order to
fairly decide whether the veteran is entitled to service
connection for degenerative disc disease of the cervical
spine, degenerative disc disease of the lumbar spine, a right
knee disability, a left knee disability, bilateral hearing
loss, a right shoulder disability and an ankle disability.
CONCLUSIONS OF LAW
1. The October 1998 rating decision is final. 38 U.S.C.A.
§ 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103
(1998); currently 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R.
§§ 3.104, 20.302, 20.1103 (2003).
2. New and material evidence has not been submitted to
reopen the veteran's claim of entitlement to service
connection for service connection for degenerative disc
disease of the cervical spine, degenerative disc disease of
the lumbar spine, a right knee disability, a left knee
disability, bilateral hearing loss, a right shoulder
disability and an ankle disability, and the claims are not
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156(a) (2001); currently 38 C.F.R. § 3.156(a) (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
As an initial matter, the Board notes that during the
pendency of this appeal, on November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). This law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notification requirements.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R.
§ 3.159(b) (2003); see Quartuccio v. Principi, 16 Vet. App.
183 (2002) (holding that both the statute, 38 U.S.C. §
5103(a), and the regulation,
38 C.F.R. § 3.159, clearly require the Secretary to notify a
claimant which evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by the
Secretary). Second, VA has a duty to assist the veteran in
obtaining evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2003).
Additionally, VA has a duty to inform the veteran of what is
necessary for his claims to be granted and must ask the
veteran for all available evidence.
The November 2000 Statement of the Case (SOC) and the April
2003 and July 2003 Supplemental Statements of the Case
(SSOCs) advised the veteran of the laws and regulations
pertaining to his claims. These documents informed the
veteran of the evidence of record and explained the reasons
and bases for denial. The veteran was specifically informed
that his claim seeking to reopen a claim of entitlement to
service connection for degenerative disc disease of the
cervical spine, degenerative disc disease of the lumbar
spine, a right knee disability, a left knee disability,
bilateral hearing loss, a right shoulder disability and an
ankle disability was being denied because he had not
submitted new and material evidence to reopen the claims.
The SOC and SSOC made it clear to the veteran that in order
to prevail on his claims, he would have needed to present new
and material evidence that addressed the link between his
service and his current disabilities. The RO sent letters
dated in June 2001, April 2003, and July 2003 that told the
veteran about the VCAA and informed him what evidence the RO
would obtain and what he needed to do. These letters did not
specifically address the criteria for reopening a claim on
the basis of new and material evidence but they did inform
the veteran that he needed to show that his disabilities were
linked to service and the November 2002 SOC discussed the
criteria for new and material evidence. The RO has obtained
VA treatment records dated from July 1997 to April 2003. The
veteran has not indicated that there is any other evidence
available, and more than one year has passed since he was
first notified of what he needed to do for his claims to be
granted.
Thus, on appellate review, the Board sees no areas in which
further development is needed. The RO has essentially met
the requirements of the VCAA, and there would be no benefit
in developing this case further. See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (strict adherence to requirements
in the law does not dictate an unquestioning, blind adherence
in the face of overwhelming evidence in support of the result
in a particular case; such adherence would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant); Sabonis v. Brown, 6 Vet.
App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the appellant are to be avoided). Under
these circumstances, adjudication of this appeal, without
referral to the RO for further consideration of the claim
under the VCAA, poses no prejudice to the veteran. See
Bernard v. Brown, 4 Vet. App. at 394; VAOPGCPREC 16-92.
The United States Court of Appeals for Veterans Claims'
(Court's) decision in Pelegrini v. Principi, No. 01-944 (U.S.
Vet. App. June 24, 2004) held, in part, that a VCAA notice as
required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits.
In the present case, a substantially complete application was
received in March 1999. Thereafter, the claim was denied in
a rating decision dated in March 2000. The RO sent letters
related to the VCAA and the duty to assist to the veteran in
June 2001, April 2003, and July 2003. These notification
letters were sent well after the March 2000 rating decision.
Only after that rating action was promulgated did the AOJ
provide notice to the claimant regarding what information and
evidence is needed to substantiate the claim, as well as what
information and evidence must be submitted by the claimant,
what information and evidence will be obtained by VA, and the
need for the claimant to submit any evidence in his
possession that pertains to the claim.
Because the VCAA notice in this case was not provided to the
veteran prior to the initial AOJ adjudication denying the
claim, the timing of the notice does not comply with the
express requirements of the law as found by the Court in
Pelegrini. While the Court did not address whether, and, if
so, how, the Secretary can properly cure a defect in the
timing of the notice, it did leave open the possibility that
a notice error of this kind may be non-prejudicial to a
claimant.
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notices provided to the appellant in June 2001,
April 2003, and July 2003 were not given prior to the first
AOJ adjudication of the claim, the notice was provided by the
AOJ prior to the transfer and certification of the
appellant's case to the Board, and the content of the notice
fully complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b). The claimant has been provided
with every opportunity to submit evidence and argument in
support of his claim, and to respond to VA notices.
Therefore, notwithstanding Pelegrini, to decide the appeal
would not be prejudicial error to the claimant.
The Board notes that the Court has concluded that the VCAA
does not require a remand where the appellant was fully
notified and aware of the type of evidence required to
substantiate his claims and that no additional assistance
would aid in further developing his claims. Della Cruz v.
Principi, 15 Vet. App. 143, 149 (2001). The veteran has
specifically stated that there is no additional evidence
available. When, as here, there is extensive factual
development in a case, and there is no reasonable possibility
that any further assistance would aid the appellant in
substantiating his claim, the VCAA does not require further
assistance. Wench v. Principi, 15 Vet App 362 (2001); Della
Cruz; see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim").
II. New and material evidence
Entitlement to service connection for degenerative disc
disease of the cervical spine, degenerative disc disease of
the lumbar spine, a right knee disability, a left knee
disability, bilateral hearing loss, a right shoulder
disability and an ankle disability was most recently denied
by the RO in a rating decision dated in October 1998. That
decision is final. 38 U.S.C. § 7105(c) (West 1991); 38
C.F.R. §§ 3.104, 20.302, 20.1103 (1998); currently 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302,
20.1103 (2003). Service connection for degenerative disc
disease of the cervical spine, degenerative disc disease of
the lumbar spine, a right knee disability, a left knee
disability, bilateral hearing loss, a right shoulder
disability and an ankle disability was denied because there
was no evidence that these disabilities were linked to
service.
Prior, unappealed rating decisions may not be reopened absent
the submission of new and material evidence warranting
revision of the previous decision. 38 U.S.C.A § 5108; 38
C.F.R. § 3.156. New and material evidence means evidence not
previously submitted to agency decision makers which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself of in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). When determining whether the claim should be
reopened, the credibility of the newly submitted evidence is
to be presumed. Justus v. Principi, 3 Vet. App. 510, 513
(1991).
The Board acknowledges that the regulation regarding new and
material evidence was recently amended. 38 C.F.R. § 3.156(a)
(2003). This amendment to 38 C.F.R. § 3.156(a) applies only
to claims to reopen a finally decided claim received on or
after August 29, 2001. The appellant's request to reopen his
claim of entitlement to service connection for degenerative
disc disease of the cervical spine, degenerative disc disease
of the lumbar spine, a right knee disability, a left knee
disability, bilateral hearing loss, a right shoulder
disability and an ankle disability was filed prior to August
29, 2001 and, therefore, the amended version of the
regulation does not apply.
The U.S. Court of Appeals for Veterans Claims (Court) has
clarified that, with respect to the issue of materiality, the
newly presented evidence need not be probative of all the
elements required to award the claim as in this case dealing
with a claim for service connection. Evans v. Brown, 9 Vet.
App. 273 (1996). However, it is the specified bases for the
final disallowance that must be considered in determining
whether the newly submitted evidence is probative. Id
Evidence offered since the claim was denied in 1998 consists
of VA treatment records dated from July 1997 to April 2003,
and statements from the veteran. The Board finds the
additional evidence to be cumulative because it relates to
already-established facts (current disability). Therefore it
is not "new." The Board, moreover, finds that the new
evidence is not material. None of the new evidence addresses
the specific reason for the prior denial in October 1998,
which was the lack of a link between the veteran's service
and his claimed disabilities of degenerative disc disease of
the cervical spine, degenerative disc disease of the lumbar
spine, a right knee disability, a left knee disability,
bilateral hearing loss, a right shoulder disability and an
ankle disability. None of the VA treatment records address
the etiology of the veteran's degenerative disc disease of
the cervical spine, degenerative disc disease of the lumbar
spine, a right knee disability, a left knee disability,
bilateral hearing loss, a right shoulder disability and an
ankle disability. These records relate to the veteran's
current condition with no suggestion of a link to service.
The statements from the veteran also do not establish a
medical link between service and the veteran's disabilities
since he is a layperson and therefore not competent to
provide a medical etiology or diagnosis. See, Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Since none of this
evidence directly addresses the reason that the claim was
previously denied in October 1998, the Board finds that this
new evidence is not material. Accordingly, the Board
concludes that the appellant has not submitted evidence that
is new and material, and the claims for service connection
for degenerative disc disease of the cervical spine,
degenerative disc disease of the lumbar spine, a right knee
disability, a left knee disability, bilateral hearing loss, a
right shoulder disability and an ankle disability are not
reopened.
ORDER
New and material evidence has not been submitted to reopen
the claims of entitlement to service connection for
degenerative disc disease of the cervical spine, degenerative
disc disease of the lumbar spine, a right knee disability, a
left knee disability, bilateral hearing loss, a right
shoulder disability and an ankle disability, and the appeal
to reopen is denied.
REMAND
As noted above, there has been a significant change in the
law during the pendency of this appeal, when the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003). This law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notification requirements. VA has a
duty to notify the appellant of any information and evidence
needed to substantiate and complete a claim. 38 U.S.C.A.
§§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2003).
See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding
that both the statute, 38 U.S.C. § 5103(a), and the
regulation, 38 C.F.R. § 3.159, clearly require the Secretary
to notify a claimant which evidence, if any, will be obtained
by the claimant and which evidence, if any, will be retrieved
by the Secretary). VA also has a duty to assist the
appellant in obtaining evidence necessary to substantiate the
claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)
(2003). Specifically, the RO should inform the veteran of
what is necessary for his claim for to be granted. The
notification should also inform the veteran what evidence he
needs to obtain, what actions the RO will take, and ask him
to submit all available evidence, as well as ensure that all
other appropriate actions under the VCAA have been taken.
The record demonstrates that the veteran has several
disabilities. Although the VA outpatient treatment reports
are informative, the Board is of the opinion that the veteran
should be afforded a VA examination for the specific purpose
of determining whether special monthly pension at the aid and
attendance or housebound rate is warranted. No such
examination appears to have been conducted in conjunction
with his recent claim for special monthly pension. The
United States Court of Appeals for Veterans Claims (Court)
has held that "fulfillment of the statutory duty to assist
... includes the conduct of a thorough and contemporaneous
medical examination...so that the evaluation of the claimed
disability will be a fully informed one." Green v.
Derwinski, 1 Vet. App. 121, 124 (1991); Allday v. Brown, 7
Vet. App. 517, 526 (1995) (citing Suttman v. Brown, 5 Vet.
App. 127, 138 (1993) (duty to assist includes providing the
veteran a thorough and contemporaneous medical examination
when needed)).
Accordingly, this case is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington DC for the following
action:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations with respect to the veteran's
claim for SMP have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A, (West 2002), and any
other applicable legal precedent. This
should specifically include notification
to the veteran telling what is necessary
to substantiate his claim for SMP. In
addition, the RO should ensure that the
veteran is notified what action he must
take and what action the RO will take on
his claims, and he must be asked to
provide any evidence in his possession
that pertains to the claim. See
38 C.F.R. § 3.159(b). The RO should
ensure that all requirements of
notification under the VCAA have been
met.
2. After pertinent records have been
received, the veteran should be afforded
a VA examination to determine whether he
is in need of the regular aid and
attendance of another person or is
housebound by virtue of the severity of
all of his current disabilities. All
indicated studies should be performed,
and all manifestations of current
disability should be described. The
claims file should be made available to
the examiner for review before the
examination.
3. The RO should then readjudicate the
veteran's claim, including reviewing all
newly obtained evidence. If any benefit
sought on appeal remains denied, the
appellant and the appellant's
representative should be provided an SSOC
that contains a summary of the evidence
and applicable laws and regulations
considered pertinent to the issue
currently on appeal. An appropriate
period of time should be allowed for
response.
Subsequently, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. No action is required of the veteran
until she is notified by the RO. The appellant has the right
to submit additional evidence and argument on the matter or
matters the Board has remanded to the regional office.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs
to provide expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.43 and 38.02.
______________________________________________
J. E. DAY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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